IN RE: the Claim of Anthony GIOCOLI

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: the Claim of Anthony GIOCOLI, Appellant. John E. Sweeney, as Commissioner of Labor, Respondent.

Decided: January 29, 1998

Before MIKOLL, J.P., and MERCURE, CREW, WHITE and CARPINELLO, JJ. John F. Vodopia, Commack, for appellant. Dennis C. Vacco, Attorney General (Linda D. Joseph, of counsel), New York City, for respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 17, 1996, which, inter alia, ruled that claimant was ineligible to receive unemployment insurance benefits because he was not totally unemployed.

Claimant was receiving unemployment insurance benefits at a time when he was the president of and owned a one-third interest in a real estate management corporation.   He performed various services for the corporation including writing checks on the corporate bank account and, on occasion, collecting rental payments and helping to maintain the corporation's buildings.   The Unemployment Insurance Appeal Board ruled that claimant was disqualified from receiving benefits because he was not totally unemployed at the time he received them and it charged claimant with a recoverable overpayment and the loss of benefit days based on its finding that claimant made willful misrepresentations in order to obtain benefits.   We affirm.   This court has held that a claimant who is a principal in an active corporation is not totally unemployed, even if the corporation is unprofitable (see, Matter of Leban [Sweeney], 233 A.D.2d 738, 650 N.Y.S.2d 53, lv. denied89 N.Y.2d 811, 657 N.Y.S.2d 403, 679 N.E.2d 642;  Matter of Ha-Dong Song [Hudacs], 205 A.D.2d 820, 613 N.Y.S.2d 275).   Substantial evidence supports the Board's decision which is, accordingly, affirmed.

ORDERED that the decision is affirmed, without costs.


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